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May 15--Oklahoma will not draft its own plan to implement the Environmental Protection Agency's Clean Power Plan, but other governors appear to be reluctant to heed Senate Majority Leader Mitch McConnell's (R-Ky.) call to boycott compliance with the rule.

Bloomberg BNA polled state governors on their Clean Power Plan intentions following McConnell's March 19 letter to the National Governors Association asking states to “carefully review the consequences before signing up for this deeply misguided plan.” McConnell has repeatedly urged states not to develop their own compliance plans for the EPA's proposed Clean Power Plan, a strategy dubbed “just say no” .

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Twenty-four states failed to respond, but the remainder were reluctant to embrace McConnell's strategy outright. No state other than Oklahoma has publicly refused to submit its own compliance plan.

Even Kentucky Gov. Steve Beshear (D), chief executive of one of the states most critical of the proposed rule, declined to embrace the strategy of his state's senior senator.

“We disagree with the EPA on numerous issues, especially those that would further restrict or diminish coal and coal-fired power plants,” Beshear told Bloomberg BNA in a statement. “However, we strongly believe that a Kentucky-developed policy for reducing greenhouse gases would be superior to a one-size-fits-all policy imposed by Washington, D.C.”

Beshear said other states with strong interests in coal mining, including Utah, Michigan, Pennsylvania and Missouri, will also develop their own compliance plans to ensure maximum flexibility for the states.

The EPA's proposed Clean Power Plan (RIN 2060-AR33), which is expected to be finalized this summer, would establish unique carbon dioxide emissions rates for the power sector in each state. State regulators would then develop their own plans to comply with the emissions rates. The EPA would issue federal plans for states that choose not to develop their own.

Federal Plan More Costly?

The federal plans are expected to be more expensive and restrictive because the EPA lacks the authority under the Clean Air Act to pursue emissions reductions through energy efficiency programs or investment in new renewable energy generation, which would be available to state regulators.

California, Colorado, Connecticut, Delaware, Kentucky, Massachusetts, New Hampshire, New York, Oregon and Vermont all told Bloomberg BNA they plan to comply with the rule when it is finalized. North Carolina said it is on the path to meet its emissions targets even though the state opposes the rule. Idaho, Iowa, Kansas, Pennsylvania, South Dakota, Utah and Wyoming all said they are still reviewing their options. Several other states deferred to the comments they had submitted on the EPA's proposal.

“As governors begin to seriously look at what these plans will look like, we expect more and more governors will follow Sen. McConnell’s lead,” a McConnell aide told Bloomberg BNA.

Though Beshear has pledged his support for the Clean Power Plan, McConnell's office touted reports that other leading candidates for Kentucky governor have said they will not comply.

Oklahoma Opts Out

Oklahoma Gov. Mary Fallin (R) became the first governor to publicly buck the EPA's Clean Power Plan when she issued an executive order April 28 prohibiting her state from submitting a compliance plan. Fallin also vetoed legislation that would have required the state to develop its own plan, subject to legislative oversight .

Other states that have been staunch opponents of the EPA's regulations stopped short of embracing McConnell's approach.

Texas Gov. Greg Abbott (R) said McConnell has his “full support for his efforts to fight this federal government overreach” following a meeting between the two in Washington, D.C., May 7. Though Abbott opposes the EPA's rule, which he believes will increase electricity prices, he stopped short of saying Texas would not submit its own compliance plan. McConnell has still touted Abbott's statement as further evidence that states will choose to opt out of compliance. Abbott's office did not respond to requests to clarify his intentions.

Kentucky Governor, Attorney General Differ

Though Beshear has said his state will develop a compliance plan for the rule, Kentucky Attorney General John Conway joined a pair of lawsuits that sought to block the Clean Power Plan before it could be finalized. Argument in the cases was heard April 16.

States Push Back

In sharp contrast to Oklahoma and Texas, states supportive of the EPA's proposal pushed back on McConnell's suggestion that they boycott compliance.

“Climate change is real. It’s a threat to humanity. We should be working harder to address it, not rolling back efforts to do so. I fully support the Environmental Protection Agency’s plan,” Vermont Gov. Peter Shumlin (D) said in a March 25 letter responding to McConnell.

New Hampshire Gov. Margaret Wood Hassan (D) also rebuffed McConnell in an April 10 letter, touting her state's experience with the Regional Greenhouse Gas Initiative.

“I respectfully disagree with your letter and would ask that states in the Midwest (and Kentucky) follow the science and take a more active effort in reducing harmful emissions, including CO2 emissions--particularly emissions generator through coal-fired power plants,” Hassan said. “Those emissions are harming the air quality and climate of states such as New Hampshire.”

California Gov. Jerry Brown (D) went further still on an appearance on NBC's Meet the Press in late March when he said McConnell's actions were a “disgrace” and “borders on the immoral.”

“To have the leader of the Senate, Mr. McConnell, representing his coal constituents, putting at risk the health and well-being of America, is a disgrace,” Brown said. “This is a serious matter we’re experiencing in California as kind of a foretaste, but there is no doubt that into the future we’re going to have more problems and we have to do something. President Obama is taking some important steps. And to fight that, it borders on the immoral.”

McConnell Plans Additional Challenges

While states have proven reluctant to cede the ability to write their own power plant plans to the EPA, McConnell has made opposition to the proposed rule a central priority, exploring several options for blocking or derailing the standards.

In addition to his call for states to boycott compliance, McConnell has also argued that Section 102(c) of the Clean Air Act requires congressional approval of binding interstate agreements or compacts to address air pollution, which could be used as a tool to shut down trading programs under the proposed rule .

McConnell and Senate Environment and Public Works Committee Chairman James Inhofe (R-Okla.) both joined Sen. Shelley Moore Capito (R-W.Va.) in sponsoring a bill that would block the EPA's proposal and set strict standards for the agency to meet if it pursues new rules .

The Senate majority leader has also pledged to fight the EPA regulations through the appropriations process, which he has repeatedly called his “best tool” for rolling the rules back.

In the meantime, though, many governors are keeping their options open. Kentucky's governor, for one, thinks states should develop their own plans or risk an onerous federal regulation that does not account for state-specific factors.

“No matter whether the states lean Democratic or Republican, they recognize that we all must be prepared for the worst-case scenario of federal regulations,” Beshear said. “Otherwise, we could be caught flat-footed with no alternatives to offer, and then be forced to implement a federal policy that doesn’t consider the particular needs of our state.”

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